Law Commons^™

More “Vitiating Paradoxes”: A Response To Steven D. Smith, Paul Horwitz

Pepperdine Law Review

In this article, the author presents his views in response to the article The Last Chapter? by critic Steven D. Smith. Topics discussed include importance of critical legal studies (CLS) theory in reflecting political aspects of religious freedom, views of Smith in his book "The Rise and Decline of American Religious Freedom," and the relationship of egalitarianism with religious freedom.

The Last Chapter?, Steven D. Smith

Pepperdine Law Review

An essay is presented in which the author presents contrasting views of law professors at Stanford and Harvard University, Michael McConnell and Noah Feldman respectively on religious freedom. Topics discussed include requirement of special protection to religious freedom, protection of religious belief and expression under other constitutional provisions such as freedom of speech, and the failure of Obama Administration in providing special freedom of association to religious associations.

Faithful Translations?: Cross-Cultural Communication In Canadian Religious Freedom Litigation, Howard Kislowicz

Osgoode Hall Law Journal

In three religious freedom cases pursued to the Supreme Court of Canada—Amselem, Multani, and Huterrian Brethren of Wilson Colony—religious freedom claimants engaged in litigation over a religious practice particular to their group. Some have argued that cases like these can be seen as cross-cultural encounters. How did the religious freedom claimants seek to make their practices—the succah, the kirpan, and the prohibition on being photographed—understood to the courts? And how did the courts respond to these claims? In this article, I draw out two central values from the literature on crosscultural communication: respect and self-awareness. I then use these values …

Free Conscience In Decline: The Insignificance Of The Free Exercise Clause And The Role Of The Religious Freedom Restoration Act In The Wake Of Hobby Lobby, John Fahner

Belmont Law Review

Unfortunately, the modern Free Exercise Clause doctrine favors a progressive interpretation concerned more with efficiency and practicality than meaningful protection of conscience. Individual liberty of conscience, once present in the American legal understanding of free exercise, is no longer a concern of the First Amendment. A truly panacean remedy requires an introspective look into the foundations of the Free Exercise Clause and a careful evaluation of the justifications for the jurisprudential departure therefrom. To that end, this note seeks to reinforce the importance and historical understanding of the Free Exercise Clause and highlight the incongruities of the modern doctrine in …

Lausti And Salazar: Are Religious Symbols Legitimate In The Public Square?, Katie A. Croghan

Georgia Journal of International & Comparative Law

No abstract provided.

Is Religious Freedom Irrational?, Michael Stokes Paulsen

Michigan Law Review

Brian Leiter is almost exactly half right. There is no convincing secular-liberal argument for religious liberty, in the sense of unique accommodation of religious beliefs and practices specifically because they are religious. Indeed, from a thoroughgoing secularist perspective — from a stance of committed disbelief in the possible reality of God or religious truth, and perhaps also from the perspective of unswerving agnosticism — “toleration” of religion is almost intolerably foolish. Affirmatively protecting the free exercise of religion, in the strong sense of freedom of persons and groups to act on religious convictions in ways opposed to secular legal norms, …

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Michigan Law Review

This Review makes two claims. The first is that Paul Horwitz’s excellent book, First Amendment Institutions, depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book’s implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book’s argument — and, …

Shall Businesses Profit If Their Owners Lose Their Souls? Examining Whether Closely Held Corporations May Seek Exemptions From The Contraceptive Mandate, Christopher S. Ross

Fordham Law Review

May for–profit, secular corporations claim the protection of the Religious Freedom Restoration Act (RFRA)?

This question is central to numerous lawsuits against the federal government in which business owners argue that certain regulations under the Patient Protection & Affordable Care Act substantially burden the exercise of their religion. This Note examines the threshold hurdle that for–profit business owners must clear to successfully state a claim under RFRA: the question of whether the businesses are “persons” the statute protects. This is an issue of first impression for the U.S. Supreme Court, and it has split the circuit courts of appeal.

First, …

The Lawless Rule Of The Norm In The Government Religious Speech Cases, Kyle Langvardt

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Contraception And The Birth Of Corporate Conscience, Elizabeth Sepper

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Has Society Become Tolerant Of Further Infringement On First Amendment Rights?, Nicholas Primrose

Barry Law Review

No abstract provided.

Amendment 2 And Its Effect On Missourians' Free Exercise Of Religion, Mishelle Martinez

Missouri Law Review

This Comment provides a thorough analysis of Amendment 2. The primary issue addressed is whether Amendment 2 will have an impact on Missourians' religious freedoms or whether Amendment 2 merely reaffirms rights already granted under the old article I, section 5 of the Missouri Constitution. If Amendment 2 does add new rights, an analysis of whether such rights are in accord with the First Amendment is required. Part II outlines the legislative history, text, and general commentary on the key provisions of Amendment 2. In Part III, all new provisions under Amendment 2 are analyzed in light of the legal …

Delegation And The Destruction Of American Liberties: The Affordable Care Act And The Contraception Mandate, Michael Barone, Jr.

Touro Law Review

No abstract provided.

Excessive Entanglement: Development Of A Guideline For Assessing Acceptable Church-State Relationships , James M. Zoetewey

Pepperdine Law Review

No abstract provided.

Limitations On Permissible State Aid To Church-Related Schools Under The Establishment Clause: Wolman V. Walter, Timothy J. Blied

Pepperdine Law Review

No abstract provided.

Unemployment Insurance And The Religion Clauses Of The United States Constitution, David J. Agatstein

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Lessons For Religious Liberty Litigation From Kentucky, Jennifer Anglim Kreder

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Ninth Circuit Rules Against Scientology Ministers' Forced-Labor Claims In Headley V. Church Of Scientology International, Jeffrey W. Tye

Golden Gate University Law Review

In Headley v. Church of Scientology International, the Ninth Circuit faced a particularly sensitive question involving the limits of the TVPA and the application of the ministerial exception. In Headley, former ministers brought TVPA forced-labor claims against the Church of Scientology (the “Church”). The Church argued before the district court that the plaintiffs’ labor was not forced, and that the ministerial exception applied to effectively bar the plaintiffs’ claims. The district court agreed, holding that the instances of physical abuse alleged did not raise a triable issue of fact as to the Headleys’ forced-labor claims. The court also …

The Making Of The Moral Child: Legal Implications Of Values Education, Joel S. Moskowitz

Pepperdine Law Review

No abstract provided.

The Government's Role In The "Purification" Of Religious Organizations, Robert L. Toms, Lisa A. Runquist

Pepperdine Law Review

No abstract provided.

"Religion" And "Religious Institutions" Under The First Amendment , Sharon L. Worthing

Pepperdine Law Review

No abstract provided.

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Pepperdine Law Review

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom. Religious freedom, in the American tradition, is not …

Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad Flanders

Pepperdine Law Review

No abstract provided.

And I Don’T Care What It Is: Religious Neutrality In American Law, Andrew Koppelman

Pepperdine Law Review

No abstract provided.

Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry

Osgoode Hall Law Journal

A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on …

Why Non-Discrimination Policies In Higher Education Require A Second Look: The Battle For First Amendment Freedom In The University Setting, Rebecca D. Ryan

Catholic University Law Review

No abstract provided.

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Michigan Law Review

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …

Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine

Michigan Journal of Race and Law

Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …

Religious Monopolies And The Commodification Of Religion, Shima Baradaran-Robison, Brett G. Scharffs, Elizabeth A. Sewell

Pepperdine Law Review

In recent years, the number of countries in which a dominant church receives state aid and other forms of preferential treatment has increased. Dominant religions and their supporters in the former Soviet bloc and elsewhere often argue that special benefits and protection are warranted based upon the unique history and contribution of the dominant church to the identity, history, and culture of the country, and the interests of the state and its citizens. Because of the distinctive status of religion and its importance to national and cultural identity, special protection, especially against foreign and other outside influence, is deemed necessary. …

The Story Behind Vidal V. Girard's Executors: Joseph Story, The Philadelphia Bible Riots, And Religious Liberty, Jay Alan Sekulow, Jeremy Tedesco

Pepperdine Law Review

No abstract provided.